Court Forces Activist Objecting To Questionable Class Action Settlement To Shut Up And Promote The Settlement

from the wow dept

Here is a rather egregious violation of basic free speech rights. For years, we've talked about how the class action process is quite frequently abused, such that it makes lawyers quite wealthy, while doing next to nothing for the "class" they're representing. In extreme cases, we've seen "settlements" that actually make the defendants in class actions better off, while still making the lawyers (of course) quite wealthy. The stories of companies being forced to pay up millions of dollars, with none of it going to actual "victims," are more common than you would imagine.

So, when Majed Moughni in Dearborn Michigan heard about such a class action settlement concerning McDonald's having sold non-halal Chicken McNuggets that were advertised as halal, he decided to protest the settlement and try to get others to do so. The settlement was what is known as a cy pres settlement, in which the lawyers get paid and the defendant agrees to give a chunk of money to charity, rather than to the class (about $700,000 in this case). There are, at times, good reasons for doing a cy pres award, but it can also be open to abuse. Settlement agreements, by law, have a period of time in which people are free to object to a settlement before it is approved, and Moughni was doing exactly that, if at times crudely, with a Facebook page that may have gone a bit far in its claims. Moughni was upset with the cy pres nature of the award, but also with the fact that there was no injunction that would block McDonald's from doing the same thing again.

However, as Paul Levy, who is now representing Moughni, makes clear in a blog post about the motion he filed in the case, the court deciding to issue a broad injunction against Moughni, barring him from talking about the case, while also forcing him to post the lawyers' view of the case, would appear to be a pretty blatant First Amendment violation:

The lawyers for the plaintiff class threatened Moughni with both a defamation suit and disciplinary charges (Moughni is a lawyer, although not by any means a specialist in class actions). Moughni would not back down, so the plaintiff’s lawyers asked the judge to shut down the page — or, more precisely, they asked that Moughni be required to take everything he had said about the case down, and to post on his Facebook page instead what they said (and what the Court had said) (That is why I am not linking to my client’s Facebook page – it isn’t really HIS page any more. Let the parties do their own publicity.) And, they asked that Moughni be forbidden to make any statements that class members might see or hear, such as by talking about the litigation to the press which, in turn, might print stories from which class members might learn Moughni’s views.

The lawyers continued their claim that they had been defamed, but really, they said, this isn’t about us, this is about protecting the poor class members against having their confidence in the lawyers undermined, protecting public confidence in the court system, and preventing class members from being confused about whether they should object to having their claims for damages extinguished so that settlement funds could go to the charities (and the lawyers). The judge held a hearing a few days later; plaintiff’s counsel spoke his piece, McDonald’s lawyers chimed in with their agreement, but Moughni’s attempt to speak was rebuffed with a peremptory “Don’t you even” from the judge. And the judge ruled, granting the injunction almost exactly as requested.

As Levy notes, with class action settlements there is strong incentive for the lawyers from both sides and the judge to get the settlement approved. It gets a case off the docket and gets the lawyers paid. So this is a situation where all three of those parties have the incentive to team up against anyone who dares to raise questions about the settlement. In fact, Levy noted that when he contacted the lawyers, noting his own intention to represent Moughni, they threatened him with sanction too. Levy notes that Moughni's original Facebook post may not have been as carefully worded as one would hope, but in no way should that ever lead to a broad injunction, along with compelling speech one disagrees with, in response. From the filing:

Giving Moughni only a few days’ notice, the Court convened an emergency hearing; then, without hearing from Moughni, issued a prior restraint of unparallelled breadth, barring Moughni from making any public statements about an entire subject matter, even statements that were entirely truthful and not at all misleading. It further compelled him to place speech with which he fervently disagreed on his own web page; and it forbade him from dissemination, circulation or publication of any opt-out form or objection during the crucial ten-day period before the deadline for members of the class to decide whether to opt out or object. On a literal reading of the injunction, Moughni was barred even from speaking to his own wife and children about the settlement, and even from submitting an objection to the settlement on his own behalf.

While he was pro se, Moughni acknowledged that he is not an expert in class action procedure; as his counsel, we readily concede that some of his statements could have been worded more felicitously. But Moughni was not counsel for a named party; he spoke only as a member of the affected community, and the Court’s order holding him to standards that would have been inappropriate even for a lawyer in the case violated black-letter law against prior restraints of speech. The injunction should, therefore, be vacated immediately. In addition, during the crucial ten-day period before the opt-out or objection deadline, the order deprived the class of the opportunity to hear dissenting views about whether to go along with a settlement that potentially deprives them of valuable rights. The Court should, therefore, reopen the period for the class to respond to the notice, and should defer any decision about approval of the settlement until that time has expired.

Even if you agree that Moughni may have gone too far with some of his Facebook postings, completely denying his right to talk about and object to the settlement, while then forcing him to post information he disagreed with, seems like an egregious violation of his rights. As Levy notes back in his blog post, whether or not the actual settlement is a good one is somewhat besides the point:

Moughni has his own view, but our motion takes no position on the merits of the settlement: our only point is that Moughni ought to have the right to say what he thinks about the settlement, and that the remedy for speech claimed to be false is not less speech but more speech. In my own mind, I have come to no conclusion about the merits of the proposed settlement.

But that just leaves me wondering, if the settlement is so wonderful, why the lawyers felt they had to resort to suppressing critical speech instead of just putting their own replies into the marketplace of ideas. At the hearing for an injunction, they had reminded the Court of how attentive the national media press had been to their publicity about the settlement (115 national media outlets, and a hundred million viewers, they claimed); surely the media would continue to give them a platform.

Hopefully the court is willing to recognize its mistake and vacate the injunction quickly.

Reader Comments

'Merika where corporations get special rights and citizens get told to shut up and take it.

It seems the Judge in this case needs to have a remedial course in 1st Amendment law, and be removed from this case as one should have serious questions about his ability to be impartial.

It is touching to see that when I thought my faith in the justice system was as low as it could get, they find a new way to go even deeper down the rabbit hole and give up pretending the law is for everyone.

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'No'

This is what I dearly hope is his response to such an insane demand. Not only is the judge squashing his first amendment rights, but to then order him to promote the claims made by the very people he's objecting to? That is just wrong and probably flat out illegal on so many levels, and there is no way it would stand up during an appeal to a higher court.

So the judge issues an injunction prohibiting any mention of the case (during the only window of time that it would matter) AND forcing him to take down material from his Facebook page, while simultaneously FORCING him to put specific content on that page? And does this without taking any actual testimony, and without even allowing the guy to say ANYTHING at the hearing where this is decided?

Lawyers and Tigers and Bears, Oh My!

I read in the Emerald City Herald today that Dorothy of Kansas came out and publicly stated that there is in fact no "man behind the curtain" and that her previous statements regarding the allegedly deceptive and fraudulent representation of the great and powerful Wizard of Oz were actually defamatory statements for which she is exceedingly apologetic. She regrets undermining the faith of the citizens of the Emerald City in their great and powerful leader.

Her trial for the scandalous murder of the benevolent Witch of the West is set to begin next month.

Re: Lawyers and Tigers and Bears, Oh My!

However, the new propaganda movie by Walt Disney Studios has had its veracity called into question by Toto, the talking dog. 'I just wish that some people would actually understand that I had to learn both English and Spanish before I got the part,' he said. 'Add in the grueling work hours on that yellow brick road and I should be getting paid a lot more than that selfish coe they call Dorothy! I had to put up with all the swearing and tantrums that took up fully half of filming!'

'And as for the saccharine ending, well that's just a load! She murdered someone in cold blood!' Toto is currently released on bail after being charged with 500 counts of perverting the course of justice and jury interference.

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Though you are most likely joking, from a quick reading of the matter and injunction this court seems to believe that they could even stop Techdirt or basically anyone in the known universe from reporting or talking, or communicating in any way on this.. I suspect they even consider that Paul Levy is committing a breach by representing Moughni in this matter. Yes the idiocy could be rampant here

Though I gather that's what the Court has basically tried to do to someone who is not really even a party to the case other than maybe part of the ambiguous 'class' made up of n number of individuals that may or may not know of the action but basically this court has turned around and stated that if anyone talks about the class in a negative light then we will sanction them and stop them. Oey our Authoritay!! whether you're actually a part of the action or not.

This is an absolute case study in misfeasance by both the judiciary and the attorneys for the class. Also most likely malfeasance on behalf of the presiding Judge

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McDonald's sold non-halal Chicken McNuggets and advertised them as halal? *GASP!* Clutch the pearls! Oh my, indeed!
This kind of goes back to the recent immigration discussion here. The government lets all these foreigners in and we get crap like this.

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I doubt that Mickey-Ds does anything without minimal marketing research, so apparently there is (or was) a market to sell in. An alternative reason for selling special chicken might be tied to a political stunt, but I do not recall Mickey-Ds being on that particular crazy train.

So, given that there is a desire to meet a need, one would think there would be a corresponding good faith effort to actual met that need rather than deception. But I suppose that is asking too much.

Perhaps your flippant response is driven by the fact that there is a religion involved, or a specific religion. Most adults would not consider this to be a large factor unless it was their religion involved. What if a business was selling kosher, but it was not actually kosher - certainly this has never happened, imagine the uproar.

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So, blatant false advertising doesn't bother you as long as it's only non-white, non-christians affected? I'm somehow not surprised to add racism and bigotry to your many failings (you realise that there are multi-generation families all born in the US that practice Islam, so this doesn't just affect foreigners - who would include tourists paying your state's taxes, btw - right?)

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Oh dear, I missed your moronic bleating reply.

"Sounds like somebody had a big bowl of PC-o's for breakfast."

They're called "facts", one of your failings being your woeful ignorance of any fact that does fit your preconceived ideas. I was simply wondering what immigration has to do with the natural born population of the US who practice Islam, or any other religion with dietary requirements - and why you apparently think this excuses false advertising and lies about the ingredients in food.

"you will notice that I blame the GOVERNMENT."

Why do you blame the government for McDonalds lying to their customers? Are you stupid enough to think that no other religion would be practised in the US if only you could isolate yourself from the rest of the world?

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We're a country of foreigners. Unless you're a Native American, go back to your homeland and stop complaining.

Now with that out of the way, any false advertising, regardless of the content, is illegal, and should be handled as such. You're letting your racism guide your responses. The kind of responses that make the rest of Americans look like the asshole you are.

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The latest thinking is that the Amerindians of the eastern US actually immigrated from western Europe, either via coastal glacial formations, or by boat following said coastline, and that they hit the area about the same time as the ones that came over via Alaska and the Bering ice bridge.

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1) Humanity developed outside America, so everyone in America is an immigrant.

2) Humanity developed inside America, so NOBODY in America is an immigrant.

3) Humanity developed simultaneously inside and outside America, so Native Americans are not immigrants but everyone else is.

Are you really going to claim 3 is correct? Or even 2?

Of course, I actually prefer 4), which is: None of the above matters; I was born here so I am not an immigrant regardless of what my distant ancestors did.

People can only be responsible for their own actions, not the actions of people who lived before they were born. Saying that only a particular race somehow has the right to live on a continent is stupid and dangerous.

However, I am NOT going to seek a court order telling you to revoke your comment and replace it with mine. Because even if an idea is stupid, you should still have the right to express it.

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"2) Humanity developed inside America, so NOBODY in America is an immigrant."

Erm, no. Even if humanity started within America, people who immigrated are still immigrants. Unless you're going to claim that I can just wander into your country without immigration documents because my species started there?

However, this discussion really is irrelevant. It started because the moron at the top of the thread claimed that concerns over halal were because of immigration - which is either a lie or astoundingly ignorant of the natural born American Muslim population.

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> We're a country of foreigners. Unless you're
> a Native American, go back to your homeland
> and stop complaining.

Ah, yes. That cliched bit of bullshit rears its ugly head.

I'm not a member of any of the tribes you referenced as Native American, but I'm no foreigner. I was born here. This is my homeland. The fact that my great-great-grandfather was from somewhere else is irrelevant.

After all, the people you referenced as Native American aren't originally from here, either. Everyone started out in Asia/Africa.

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Cops rarely prevent crimes and except in the most miniscule mount of cases arrive way too late to make any real difference especially in the situation you just described. Please insert coin and try again.

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Cops rarely prevent crimes and except in the most miniscule mount of cases arrive way too late to make any real difference especially in the situation you just described. Please insert coin and try again.

Just because police rarely intervene while a crime is being committed doesn't mean they have no effect on crime rates.

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> Cops rarely prevent crimes

The mere existence of a police force prevents most crime. You really think if the police forces just disappeared tomorrow that cities like Chicago and Los Angeles and Miami wouldn't be on fire within twelve hours?

What can we do?

Forgive my ignorance of legal matters, but I have wondered many times if an average joe such as myself (not the infamous AJ from TD) can do anything to contact courts and judges to input opinion and facts so that judges can make informed decisions. Anyone got suggestions on where to start reading? I'd like to avoid being laden by a lifetime of debt to get this answer via university law degree.

Re: What can we do?

Well to contact this judge, simply do what Mcdonalds did and send several hundred thousand dollars to her personal offshore bank account at...

-- technical fault please stand by --

Mcdonalds is great and has never done anything wrong ever and has specifically NEVER bribed dozens of judges with cash to tip verdicts in their direction.

This judgement was brought to you by the your friendly

Mcdonalds is the healthiest food on earth and everything else including rival fast food will not only give you bum cancer but will cause your children to die screaming in their sleep.
------
This declaration was brought to you by your local McJudge.
Violation of the Constitution? BA BA BA BA BA...I'm lovin it

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Umm, that's way too specific to be a modern patent. I would suggest,

Displacing one or more objects, both real and notional, from one medium into another for the purpose of , but not limited to, humour. (and with the necessary) The description of such being conveyed between two electronic devices of indeterminate location.

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Judge needs prison time

Clearly this judge has violated the first amendment. This means the judge cannot be trusted to enforce any mere local or federal laws, and must immediately be pulled from the bench, disbarred and sent to prison, preferably gitmo, which is where we send terrorists. In this case, the judge is a constitutional terrorist and should be treated as such.

Re: Judge needs prison time

That's overkill. Getting him off the bench is plenty. Judges should not face jail time for bad decisions unless there is actual provable corruption.

The fact that the judge "violated the first amendment" isn't by itself enough for me to even want them off the bench. But this was egregious. Prior restraint, forced speech, and not allowing the person to speak in opposition to the motion, all rolled in to one. Oh, and ordering him to provide the names of everyone who "liked" his post. Because the guy posted something the judge didn't like on Facebook.

Clearly...

Hillarious, I tend to avoid companies that don't practice ethics too.

I'm glad a lot of people here tend to understand ethics.

My question is why didn't they just file a complaint with the FTC? They do a great job of cataloging complaints.

Here's the thing about these types of corporate attorneys-- they get paid first. About a year ago, it seems attorneys for Liberty Mutual were able to pursuade a Judge to agree that adjusters are "non-exempt" clerical workers. As such, they were able to avoid payout of overtime wages in California. At the time, Liberty Insurance had FOUR class-actions brought up against them regarding overtime pay.

Basically, the insurance company didn't adequately tell their own employees about how they're paid. So there's something about companies that have lapses in ethics like this.

But in any situation, there is always the ability to appeal to a higher court. If this happens, a higher judge will part the clouds, and strike down the people in the legal and marketing departments who believe that advertising that includes false statements is okay. When this happens, it makes me fear for opportunistic attorneys and companies, especially when the attorneys learn that a company decides to pay them first.

But they're the ones who have law degrees, and likely $100,000 in school loan bills too. So with a settlement like this, and likely another lapse in ethical behavior, the attorney could be disbarred, be legally allowed to pursue a different career, because the student loans are likely now paid off. Good for them.